FAY BERNSTEIN v. ALLEN BERNSTEIN (02/05/82)

No. 2157 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Family Division, of Philadelphia County at No. 78-05107.

Before Wickersham, Watkins and Lipez, JJ.

MEMORANDUM

Appellant, Fay Bernstein, has taken this appeal from the lower court's order denying her petition for support from her husband, Allen Bernstein. We affirm the order of the lower court.

The facts of this case may be summarized as follows. Fay and Allen Bernstein were married on March 11, 1961. They have two children, Brian, born July 18, 1964, and Laura, born April 16, 1969. In August of 1978, Mrs. Bernstein left her marital home with her children and she has continued to live apart from her husband since that time. Approximately one month before leaving, Mrs. Bernstein informed her husband of her decision to leave and she moved into a separate bedroom and filed a petition for support on behalf of herself and her children. A support order was entered by agreement of the parties on October 18, 1978 that Allen Bernstein would provide support for his children. Mrs. Bernstein withdrew her request for support without prejudice at that time. On April 11, 1979, Mrs. Bernstein filed another petition requesting support for herself. A hearing was conducted on Mrs. Bernstein's petition for support on September 19, 1979 and after hearing all of the evidence the lower court concluded that Mrs. Bernstein was not entitled to support because she was not legally justified in leaving her husband.

Mrs. Bernstein contends in her appellate brief that the evidence presented at the support hearing did show that she had legal justification for leaving her husband and that the lower court abused its discretion in allowing the admissions of irrelevant and prejudicial testimony at the support hearing concerning the pending divorce action between herself and her husband.

At the outset, we note that:

in support proceedings, it is the function of this court to determine whether there is sufficient evidence to sustain the court below or whether the court below was guilty of an abuse of discretion. Commonwealth ex rel. DeCristofano v. DeCristofano, 193 Pa. Super. 574, 165 A.2d 105 (1960); Commonwealth ex rel. Udis v. Udis, 174 Pa. Super. 624, 101 A.2d 144 (1953). A finding of an abuse of discretion is not lightly made and is determined only upon the showing of clear and convincing evidence that would require reversal of the lower court.

We believe that there was sufficient evidence to sustain the lower court's finding that Mrs. Bernstein failed to show that her husband's conduct justified her leaving. In Commonwealth ex rel. Lebowitz v. Lebowitz, 227 Pa. Super. 593, , 307 A.2d 442, 443 (1973), we stated that:

'[a] wife who withdraws from the marriage domicile is entitled to support only if she shows that her husband's conduct justified her leaving, or that he consented to the separation. Commonwealth v. Sgarlet, 180 Pa. Super. 638, 121 A.2d 883 (1956). But she is not held to the high degree of proof required of the husband and need not establish facts which would entitle her to a divorce; it is sufficient if she justifies living apart from her husband for any reason adequate in law. (Citing Cases) 'Commonwealth ex rel. Miller v. Miller, 209 Pa. Super. 196, 223 A.2d 917 (1966).

In the instant case, Mrs. Bernstein testified that she left her husband because there was no marriage, there was no communication or affection. Record at 3. Mrs. Bernstein also testified that she was afraid of her husband because he had a violent temper and that he would throw her during arguments and that one time he choked her. Record at 4. Mrs. Bernstein also testified that her husband "expected sex on a regular basis, like every other day," and that he would become angry if she refused him. Record at 4-5. Mrs. Bernstein testified as follows with regard to the events which precipitated her decision to leave:

A ... When I told him I was going to leave, a couple days before that we had an argument. He had come home from a separate vacation he had went on by himself because I didn't want to go and he was going with or without me. And I didn't want to give him sex that night and he got angry and he walked around angry for two days.

And I had had it. When he would be that way I would be very fearful and nervous.

Q [By the court] Did you communicate that fact to him? Did you tell him you had had it ...

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